Labor / Employment

Can Harvey Weinstein Be Successfully Sued?

Can the women who have accused him of sexual harassment (or worse) recover damages?

By Evan Gibbs on October 17, 2017 10:02 am

Harvey Weinstein (Photo by Drew Angerer/Getty Images)

Unless you’ve been living under a rock, you know that well-known film producer Harvey Weinstein was recently fired by his company, The Weinstein Company, after allegations surfaced that he has been systematically using his power and influence for decades to sexually harass women. The New York Times published a list of actresses who have now come forward with accusations against Weinstein. Spoiler alert: it’s a long list.

And while coming forward publicly with these accusations has (presumably) irreversibly damaged Weinstein’s career, what legal remedies do these women have against Weinstein? Can they recover damages?

The law we usually look to when discussing allegations of sexual harassment is Title VII of the Civil Rights Act of 1964. It prohibits, among other things, sexual harassment against employees. The wrinkle is that that Title VII only protects actual and prospective employees of an employer. Thus, if Weinstein’s victims weren’t actual or prospective employees of Weinstein’s company (or other companies that he worked for previously), then the victims almost certainly would not be able to sue under Title VII.

From what I’ve read, it seems that some of the victims may have been prospective or actual employees of Weinstein’s employer (whether The Weinstein Company or some other company earlier in time). But it also seems that many of the victims were aspiring actresses who may have been unaffiliated as a prospective or actual employee of Weinstein’s employer, and he may have simply been offering his influence within the film industry in general to aid (or hinder, as the case may be) their careers.

There’s also another problem. Title VII only gives individuals a limited amount of time in which to come forward with their allegations. Prior to filing a lawsuit under Title VII individuals must file a charge of discrimination with the Equal Employment Opportunity Commission. Individuals must generally file their charge within 180 days of the most recent incident of the alleged harassment. (This is extended to a maximum of 300 days in some states.) This means that many of the victims’ claims — even if otherwise covered by Title VII — would likely be time barred.

Let’s assume, however, that an employee or prospective employee was harassed by Weinstein recently enough to be able to timely file a charge of discrimination and eventually a lawsuit against him and his company. Could the company be liable under Title VII? Probably so. Could Weinstein be personally liable? Probably not.

Title VII doesn’t impose liability on individual supervisors (which is what Weinstein would likely be considered in such a case, since he seems to have had the authority to hire and fire, but reported to a board of directors). Instead, courts have interpreted Title VII as imposing only respondeat superior liability on employers for the acts of its employees. Weinstein would probably therefore be off the hook personally for damages under Title VII.

To succeed on a claim of harassment against Weinstein’s company after getting past the procedural and administrative hurdles, an individual would have to show that she was subjected to quid pro quo harassment (“have sex with me or you’re fired”) or that she was subjected to a hostile working environment (unwelcome advances that were severe and/or pervasive). Depending on the facts, the individual may need to also show that the company was knew that the harassment was occurring and failed to act.

TMZ reported on October 12 that it obtained a copy Weinstein’s employment contract with The Weinstein Company. TMZ stated that the contract provides that if Weinstein was “sued for sexual harassment or any other ‘misconduct’ that results in a settlement or judgment against [The Weinstein Company], all Weinstein has to do is pay what the company’s out, along with a fine, and he’s in the clear.” TMZ further reported that the contract also states that if Weinstein paid such monies, Weinstein would keep his job with the company. If true, this could be at least circumstantial evidence that the board of directors knew about Weinstein’s conduct.

Aside from (or possibly in addition to) Title VII, some individuals could have common law tort claims against Weinstein for assault, battery, infliction of emotional distress, and others. In some jurisdictions, however, if these allegations were brought by former employees, these common law causes of action may be preempted by Title VII. These claims could also be time barred by the respective statutes of limitation.

Unfortunately, it seems like some of the individuals who have come forward may have difficulties holding Weinstein and his company civilly liable for his actions if they chose to pursue that route. Nevertheless, my hope is that these public revelations (taken together with similar recent allegations against Bill O’Reilly, Roger Ailes, Bill Cosby, and others) will at least prevent others from being harmed by Weinstein.

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)